CONTROLLING PROVISIONS: No terms and conditions other than the terms and conditions contained herein shall be binding upon TRSD unless accepted by it in a writing signed by the TRSD’s Operations Manager. All terms and conditions contained in any prior oral or written communication, including, without limitation, Customer’s purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on TRSD, whether or not they would materially alter this document, and TRSD hereby objects thereto. All prior proposals, negotiations and representations, if any, are merged herein. Customer will be deemed to have assented to all terms and conditions contained herein if any part of the goods and/or services described herein are shipped or an invoice is presented in connection with the said goods and/or services.
PAYMENT TERMS: Customer agrees to pay for the products according to the TRSD’s payment terms. In the event Customer fails to make any payment to TRSD when due, Customer’s entire account(s) with TRSD shall become immediately due and payable without notice or demand. All past due amounts are subject to service charges at the rate agreed upon by the parties, otherwise at the maximum contract rate permitted by law. Customer does hereby grant TRSD a purchase money security interest in the products until such time as TRSD is fully paid. Customer will assist TRSD in taking the necessary action to perfect and protect TRSD’s security interest. No products furnished by the TRSD shall become a fixture by reason of being attached to real estate.
REMEDIES OF TRSD: Upon default by Customer, Customer agrees to reimburse TRSD all attorney fees and court costs incurred by TRSD in connection therewith. Customer agrees that any of the following shall constitute an event of default which shall enable TRSD, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Customer to perform any term or condition contained herein; (b) any failure of Customer to give required notice; (c) the insolvency of Customer or its failure to pay debts as they mature, an assignment by Customer for benefit of its creditors, the appointment of receiver for Customer or for the materials covered by this order or the filing of any petition to adjudicate Customer bankrupt; (d) the death, incompetence, dissolution or termination of existence of Customer; (e) a failure by Customer to provide adequate assurance of performance within ten (10) days after a justified demand by TRSD or (f) if TRSD, in good faith, believes that Customer’s prospect of performance under this Agreement is impaired. All rights and remedies of TRSD herein are in addition to, and shall not exclude, any rights or remedies that TRSD may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and Customer shall pay all such charges.
GOVERNING LAW: This transaction shall be governed in all respects by the laws of the Commonwealth of Virginia (excluding choice of law provisions). All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against TRSD within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice.
DELIVERY: TRSD will make a good faith effort to complete delivery of the products as indicated by TRSD in writing, but TRSD assumes no responsibility or liability and will accept no backcharge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to TRSD, including, but not limited to, liability for TRSD’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of TRSD. Under no circumstances shall TRSD be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
WARRANTY: THE Customer’s SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE PRODUCT’S MANUFACTURER. TRSD MAKES NO EXPRESSED OR IMPLIED WARRANTIES. TRSD HEREBY DISCLAIMS ALL EXPRESSED OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL TRSD BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE PRODUCTS SOLD BY TRSD. Customer HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL TRSD’S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE PRODUCT(S); NO ADDITIONAL ALLOWANCE SHALL BE MADE FOR THE LABOR OR EXPENSE OF REPAIRING OR REPLACING DEFECTIVE PRODUCTS OR WORKMANSHIP OR DAMAGE RESULTING FROM THE SAME. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL PRODUCTS AND/OR SERVICES PROVIDED BY TRSD AND ITS EMPLOYEES AND AGENTS ARE PROVIDED “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.”
RECOMMENDATIONS BY TRSD: Customer acknowledges that TRSD does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) the products sold, their use, design, application or operation, their merchantability, their physical condition or their fitness for a particular purpose, (ii) the maintenance or other expenses to be incurred in connection with the products, (iii) the engineering, design, fabrication work or any other work or service (whether gratuitous or for payment) supplied by TRSD and/or its agents, suppliers and employees or (iv) the accuracy or reliability of any information, designs or documents furnished to Customer. TRSD neither assumes, nor authorizes any person to assume for it, any other obligation in connection with the sale of its products and/or rendering of its services. Any recommendations made by TRSD concerning the use, design, application or operation of the products shall not be construed as representations or warranties, expressed or implied. Failure by TRSD to make recommendations or give advice to Customer shall not impose any liability upon TRSD.
INDEMNIFICATION: The Customer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the products. TRSD makes no promise or representation that the products or services will conform to any federal, state or local laws ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of TRSD. The TRSD’s products are not for use in or with any nuclear facility unless specifically so stated by TRSD in writing.
TRSD shall not be responsible for any losses or damages sustained by the Customer or any other person as a result of improper installation or misapplication of the products. Customer shall defend, indemnify and hold harmless TRSD and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Customer’s employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the products by Customer or of the information, designs, services or other work supplied to Customer, whether caused by the concurrent and/or contributory negligence of Customer, TRSD, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
INSPECTION AND ACCEPTANCE: Claims for damage, shortage or errors in shipping must be reported within one (1) day following delivery to Customer. Customer shall have seven (7) days from the date Customer receives any products to inspect such products and services for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify TRSD, in writing, of any defects, nonconformance or rejection of such products. After such seven (7) day period, Customer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Customer shall have no right to reject the products for any reason or to revoke acceptance. Customer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Customer shall have no right to order any change or modification to any product or service previously ordered by Customer or its representatives or cancel any order without TRSD’s written consent and payment to TRSD of all charges, expenses, commissions and reasonable profits owed to or incurred by TRSD. Specially fabricated or ordered items may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the manufacturer’s inspection and warranty.
RETURNS: Customer may return any product which TRSD stocks with no restocking charge if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. Customer’s surplus job returns, and those not meeting (i) and (ii), above, will be evaluated on an individual basis after Customer has contacted TRSD’s authorized representative for prior written permission. Special orders or non-stock items may be returned if the manufacturer will accept the return. Except for items TRSD stocks which meet (i) and (ii), above, credit memoranda issued for authorized returns shall be subject to the following deductions: (a) cost of putting items in salable condition; (b) transportation charges, if not prepaid; and (c) handling and restocking charges.
SHIPMENTS: All products are shipped F.O.B., point of shipment. Risk of loss shall transfer to the Customer upon tender of goods to Customer, Customer’s representative, or common carrier. The cost of any special packing or special handling caused by Customer’s requirements or requests shall be added to the amount of the order. If Customer causes or requests a shipment delay, or if TRSD ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Customer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Customer. Claims for products damaged or lost in transit should be made by Customer to the carrier, as TRSD’s responsibility ceases upon tender of goods to Customer, Customer’s representative or common carrier.
TAXES: The amount of any sales from any TRSD products are inclusive of all DUTIES, FRIEGHT CHARGES and all pertinent taxes
ORDER CANCELLATION: (a) Buyers Cancellation for Convenience: Buyer may cancel any order for convenience on the following terms: (i) For standard products, Buyer may cancel or reschedule a product without penalty if the cancellation is more than thirty (30) days from the Confirmed Shipping Date (as specified in TRSD’s Order Acknowledgement or other document); cancellations within 30 days of a Confirmed Shipping Date must be approved in writing by a TRSD sales manager and may be subject to special charges (ii) For nonstandard parts, custom products, or standard parts with minimum usage Buyer may cancel or reschedule more than ninety (90) days from the Confirmed Shipping Date, except that Buyer shall accept delivery of all such products which are completed at the time of cancellation or rescheduling. Those nonstandard products which are in the work-in-process inventory at the time of cancellation or rescheduling, shall be paid for by Buyer at a price equal to the completed percentage of the product multiplied by the price of the finished product. Buyer also shall pay promptly to TRSD the costs of settling and paying claims arising out of the termination of work under TRSD’s subcontracts or vendors and any accounting, legal, and clerical costs arising out of the cancellation.
(b) Buyers Cancellation for Default: Upon written notice to TRSD, any order may be canceled in whole or in part in accordance with the terms hereof, because of TRSD’s failure to deliver products by the Confirmed Shipping Date (this failure hereinafter called “Default”). Cancellation by Buyer for TRSD’s Default, which may entitle Buyer to procurement costs, shall be effective only upon TRSD’s failure to correct such Default within a reasonable period of time, but not less than thirty (30) days after receipt by TRSD of written notice of such Default. Upon cancellation, Buyer, as its sole remedy, may recover from TRSD as damages the difference between cost of procurement from another source (cover) and the contract price, less expenses saved as a consequence of TRSD’s breach. In no event shall these damages exceed ten percent (10%) of TRSD’s product price multiplied by the number of products unconditionally (not subject to cancellation under 6(a)) ordered by Buyer which remain unshipped at the time of cancellation.
(c) TRSD’s Cancellation: TRSD shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. Any order that can be cancelled or rescheduled by Buyer pursuant to paragraph 6(a) may be cancelled or rescheduled by TRSD if notice is given to Buyer.
SEVERABILITY: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom.
SET-OFF: Customer shall not be entitled to set-off any amounts due Customer against any amount due TRSD in connection with this transaction.
CERTIFICATIONS: TRSD certifies that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments and that it does not permit and will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. TRSD certifies further that its services are performed in compliance with the Labor Standards Laws of the Philippines, as amended.
NON-WAIVER: TRSD’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of TRSD’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by TRSD’s Operations Manager.
FORCE MAJEURE: TRSD shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of god, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond the reasonable control of TRSD. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by the TRSD’s Operations Manager. All transactions shall be governed solely by the terms and conditions contained herein.
APPLICABLE LAW: Unless otherwise agreed in writing, the terms and conditions contained herein shall be governed by and construed under the laws of the Philippines.
